McGILL LAW JOURNAL
[Vol. 4
RAYMOND et al. v. MIRON et al.
PROMISE OF SALE WITH TRADITION –
REGISTRATION OF INVALID SALE OF
STELLIONATE – ART. 2085 C.C. –
RIGHT TO DISSOLVE
IMMOVEABLES –
res inter alios acta FOR FRAUD – ART. 957 C.P. – AMENDMENT THERETO –
DIRECT ACTION OF INJUNCTION PRIOR TO 1954 – NATURE OF THE RIGHT
GRANTED BY PARAGRAPH 3 OF ART. 957 C.P. – TEXTUAL DISCREPANCY
–
SUGGESTED AMENDMENT OF THE CODE OF CIVIL PROCEDURE ………
On March 5th, 1954, the Act of 2-3 Ellz. II, c. 27, s. 11 amended act. 957
of the Quebec Code of Civil Procedure by the addition of a third paragraph, so
that the article now reads:
957. Any judge of the Superior Court may grant an interlocutory order of in-
junction in any of the following cases:
1. At the time of issuing the writ of summons:
a. Whenever it appears by the petition that the plaintiff
is entitled to the
relief demanded, and that such relief consists, in whole or in part, in restraining
the commission or continuance of any act or operation, either for a limited period
or perpetually;
b. Whenever the commission or continuance of any act or operation would
produce waste, or would produce great or irreparable injury;
2. During the pendency of a suit:
a. Whenever the commission or continuance of any act or operation during
the suit would produce waste or would produce great or irreparable injury;
b. Whenever the opposite party is doing or is about to do some act in violation
of the plaintiff’s rights, or in contravention of law, respecting the subject of the
action, which is of a nature to render the final judgment ineffectual.
3. Without the issue of a writ of summons ,in the case of sub-paragraphs a
and b of paragraph 1, if at the time the plaintiff has no other recourse to exercise
than an injunction. The application for injunction shall then itself constitute a suit.
The issue of an interlocutory order of injunction in such circumstances shall not
deprive the petitioner of the right to obtain later the issue of a writ of sum-
mons to exercise any other recourse on the same subject, but based on a ground of
action subsequent to his petition for an interlocutory injunction.
The wording of articles 965 and 968 C.P. was slightly amended by the same
Act,’ apparently to bring them into line with the revised Art. 957 C.P.
This amendment has been considered recently in two unreported and two
reported decisions, the last one of which is Raymond et autres v. Miron et
autre,2 a judgment of the Court of Queen’s Bench. In all four cases it was
held that the effect of the amendment has been to introduce into Quebec
law a principal demand of injunction as distinguished from the existing right
to demand an injunction incidentally to an action. In each of these cases, how-
ever, the court refused to allow such injunction on the grounds that the re-
quirements of paragraph 3 of art. 957 C.P. had not been met.
‘By Sections 12 and 13 respectively.
2[1957] Q.B. 571; Champlain Oil Products Ltd. v. Beaudin, [1956] P.R. 270;
Guaranteed Pure Milk Co. Ltd. v. Patry, Q.B. No. 5289; Segal v. P. Caplan Con-
struction Co. Ltd. and Partridge Realty Co., C.S.M. No. 3891164.
No. 1 ]
CASE AND COMMENT
The facts of the Raymond case are rather unusual. On May 8th, 1953,
Raymond, the owner of two lots, signed a promise of sale in favor of two
relatives, Eva Gagnon and Jean-Louis Gagnon. They accepted it on November
9th, 1953. This did not deter Raymond, on November 12th, from.making
Miron a promise of sale of the same lots, which was accepted on November
23rd. The next day Raymond put Miron in possession. However, three days
later Raymond signed an authentic deed of sale of the lots in favor of the
Gagnons. The deed was registered. The same day the Gagnons granted to
one Maloney an option on the lots, which he. accepted and proceeded to
transfer to one Phelaf who, in August 1954, signed a contract of sale with
the Gagnons. This contract did not become authentic because, on September
22nd, 1954, Miron was successful in a petition before the Superior Court for
a peremptory injunction against Raymond, the Gagnons, Ph$lan, and two
mis-en-cause (including the notary).
The petition asked that appellants be enjoined to cease immediately “la
commission ou continuation d’un acte de vente partiellement complt6” be-
fore notary Massicotte; (2) that appellants Eva and Jean-Louis Gagnon be
ordered to cease “la commission ou ]a continuation de toute autre action ten-
dant A c~der, transf~rer ou transporter” the lots to either Phelan or anyone
that one Baudry be enjoined from signing the act of sale and notary
else; (3)
Massicotte, mis-en-cause, from completing it.
Judge Montpetit of the Superior Court granted the request. This decision
was appealed to the Court of Queen’s Bench which reversed the lower court,
revoked the injunction and granted to appellants costs in btli courts. The
judgement of the Court of Appeal was rendered by Mr. Justice Bissonnette.
Justices Hyde and Owen concurred without comment.
The decision is founded on the following two grounds:
1. Since the injunction asked for was not incidental to any action it could
only be upheld if it fell within the provisions of the last paragraph of art.
957 C.P. It was held that the petition did not meet the essential condition of
that paragraph that a principal demand of injunction can only be entertained if
there is no other recourse.3 In this case petitioner was said to have another
remedy since he could have sued for the dissolution of the sale by Raymond
to the Gagnons and of the sale made by them to Phelan, on ground of “dol”
or fraud.
2. Furthermore, the court said,4 even if it were granted, the enjoining
order would be ineffective because
l’ordonnance du tribunal .
. tendrait uniquement A empcher la signature du
contrat d’une vente qui, de fait, est conclue par le consentement des parties, mime
si le notaire n’a pas encore sign6 l’acte, (Gagnon i Phelan) et laisserait, en m~me
.
3Bissonnette J. stated his view on the point in identical terms
in the unreported
case of Guaranteed Pure Milk Co. Ltd. v. Patry Q.B. No. 5289, which was cited and
followed in Champlain Oil Products Ltd. v. Beaudin [1956], P.R. 270.
4At p. 575.
McGILL LAW JOURNAL
[Vol. 4
temps, subsister une autre vente (Raymond i Gagnon), de sorte que ne serait pas
surmont6 l’obstacle qui, dans le cadre de la contestation actuelle, empache les in-
tim~s de rclamer, sous une forme ou sous une autre, la revendication de ces deux
lots de terre. Au cours des derni~res annes, la jurisprudence de cette Cour s’est
fix~e dans ce sens.5 II me parait 6vident que l’ordonnance d’injonction ne serait pas
un remade efficace A la cause des requrants. Diff&rent efit pu Etre le r~sultat d’une
demande d’injonction greffie sur une action en resolution des deux ventes.
This decision raises three important points of law, one with respect to Art.
2085, one with respect to the dissolution of contracts made by third parties
in fraud of the rights of the plaintiff, the other involving the law of in-
junction.
As Mr. Justice Bissonnette states it, anyone who is defrauded by a contract
made between third parties could sue for its dissolution. No authorities are
cited for this proposition. What then are the main applicable rules of the Civil
Code? Art. 1023 C.C. says:
Contracts have effect only between the contracting parties: they cannot affect
third persons, except in the cases provided in the articles on the fifth section of this
chapter.6
Articles 991, 993 and 1000 C.C. are of no assistance as they refer only to the
effect of fraud or “dol” as between the parties to a contract. The rule of art.
1027 C.C. is:
The rules contained in the two last preceding articles apply as well to third
persons as to the contracting parties, subject in contracts for the transfer of im-
moveable property, to the special provisions contained in this Code for the re-
gistration of titles to and claims upon such property.
Of the preceding provisions to which this article refers, only the first para-
graph of art. 1025 C.C. is relevant here:
A contract for the alienation of a thing certain and determinate makes
the
purchaser owner of the thing by the consent alone of the parties, although no
delivery be made.
Article 2098 C.C. stipulates that:
gistered.
All acts inter vivos conveying the ownership of an immoveable must be re-
In default of such registration, the title of conveyance cannot be invoked against
any third party who has purchased the same property from the same vendor for a
valuable consideration and whose title is registered.
This rule is reinforced drastically by art. 2085 C.C. which says:
The notice received or knowledge acquired of an unregistered right belonging
to a third party and subject to registration, cannot prejudice the rights of a sub-
sequent purchaser for valuable consideration whose title is duly registered, except
when such title is derived from an insolvent debtor.
With respect to promise of sale there are two important provisions of the
Civil Code which must be borne in mind:
5Here Bissonnette J. is referring to his opinions in Johnson Woollen Mills Ltd. v.
Southern Canada Power Co. Ltd. [1945] K.B. 134 and Brisebois v. Beausdiour
(1951), K.B. 584.
6Articles 1028-1031 C.C. (promise of porte fort and stipulation pour autrui).
No. 1]
CASE AND COMMENT
Art. 1476. A simple promise of sale is not equivalent to a sale, but the creditor
may demand that the debtor shall execute a deed of sale in his favor according to
the terms of the promise, and, in default of so doing, that the judgment shall be
equivalent to such deed and have all its legal effects . . .
Art. 1478. A promise of sale with tradition and actual possession is equivalent
to sale.
What can one deduce from these articles? Since Miron had a promise of
sale and was put into possession, he had acquired ownership of the two lots
as of November 24th (art. 1478 C.C.). 7 The promise of sale to the Gagnons
made previously was not equivalent to sale and thus could not have transferred
ownership (art. 1476 C.C.). So when Raymond signed a deed of sale with
them on November 28th he no longer owned an immoveable he could sell and
the sale was null in virtue of art. 1487 C.C. Up to this point there would be
no need for Miron to seek the dissolution of a transaction which was null ab
initio, and which could be presumed to be a radical nullity since the Gagnons
must be held to have known that the lots no longer belonged to their vendor.8
However, the deed of this invalid sale was registered. What is the effect of
such registration? If we combine articles 2098 and 2085 C.C. we are forced
to conclude that a first purchaser cannot invoke his title against a sub-
sequent buyer whose title is registered, even though the latter may have
received notice or acquired knowledge of the unregistered right, provided
nevertheless he gave valuable consideration. 9 Thus, on the surface, Miron
the
could not defeat the registered right of the Gagnons notwithstanding
circumstances under which they acquired it. But there is one element which
in art.
can cancel the extraordinary protection given to second purchasers
2085 C.C.: collusion in a fraud.
Marler 10 suggests that Codifiers drafted art. 2085 C.C. principally to en-
force more strictly the registration of titles to land which was often neglected
prior to the Code.” But, he then points out, to ensure the success of the
second purchaser five conditions must be met, the fifth one of which is parti-
cularly relevant to the case under discussion:
5. That his title had not been obtained by collusion with that person,
(the
vendor) to defeat the unregistered right, for that would be fraud of such a flagrant
nature as to vitiate his acquisition, as he would be then his accomplice and a
participator in the stellionate committed by the common vendor.
This is the opinion of the French authorities and of the Quebec jurisprudence.’ 2
In other words, neither notice nor even positive knowledge of an anterior
7See The Law of Real Property, by William de Montmollin Marler, Toronto,
1932, No. 443.
8Marler, op. cit., No. 421.
9See e.g. Goulet v. Duvauchel (1954), R.L. 232.
10 0p. cit., No. 1120.
IlMignault, Traits de Droit Civil Canadien, Montreal (1909) T. IX, p. 197.
12 Trenton Construction & Supply Co. v. Lavoie [1946], R.L. 6; Noel v. Chartier
(1935), 41 R.L.n.s. 111; Samson v. Dicarie (1921-22), 63 S.C.R. 11: Mignault J. at 27;
Bernier J. at 30; Duff J. at 13; Fonderie de Plessisville v. Brisson (1908), 33 S.C.
McGILL LAW JOURNAL
[Vol. 4
alienation can hinder a second purchaser from taking advantage of his prior
registration unless he is in collusion with the common vendor. The problem
arises in determining the presence of collusion. It necessarily must be more
than positive knowledge for that, according to art. 2085 C.C. does not debar a
second purchaser. There must be active participation in the fraud. Where does
one draw the line between positive knowledge of a fraud which is being
perpetrated and collusion? No court has yet given even a definition of the
collusion required to checkmate art. 2085 C.C. How fine the line is can be
seen from the obiter of Duff J. in the Supreme Court decision of Samson v.
Dicarie:ls
I observe only with respect to art. 2085 that while it deprives notice or know-
ledge of an unregistered right of any effect as prejudicing the title of the pur-
chaser who complies with the provisions of the law in relation to registration, it
does not follow that such knowledge may not be cogent evidence which coupled with
other circumstances may afford adequate proof of fraud on the part of such pur-
chaser disentitling him to rely upon the rights which otherwise would be his. On
the other hand it is important to be on one’s guard against applying this process
of interference in such a way as virtually to equiparate knowledge itself with fraud
thereby in effect sterilizing the enactment of the article.
Marler is equally cautious;14
The vendor who sells the same thing to two different parties is guilty of stellionate;
the purchaser who acquires from him having had notice of a previous alienation
is not in bad faith because the alienation of which he has had notice may, not-
withstanding, not have taken place, or may never have been consummated; if he
has positive knowledge of the previous alienation he is in bad faith, but not to the
extent of depriving him of the benefit conferred by law, for if he can induce the
common vendor to sell the property to him and he obtains and registers his title
from him, the law protects him, if he is the first to register.1′
. . . Some authors
are of opinion that knowledge of the unregistered right, even when there is no
collusion, constitutes fraud, but the majority of writers, and the plain provisions
of our Code, are against them.
Esmein describes the French jurisprudence as holding that there must be
proof of a “concert frauduleux,” although he adds that in reality the courts
are often satisfied with the knowledge of the second purchaser that the vendor
intends to defraud the first buyer.1′ The French courts have gone so far as
to hold that if the second (collusive) purchaser resells to a third buyer in
good faith, the latter cannot invoke the lack of transcription (registration)
of the right of the first buyer.1 7 There was such third purchaser in the
Raymond case –
and Mr. Justice Bissonnette casts grave doubt
on his good faith.
Phelan –
23; Farmer v. Devlin (K.B.) (1887), 15 R.L. 621; Lefevre v. Branchaud (1878), 22
L.C.J. 73.
13(1921-22), 63 S.C.R., 11 at 13.
14op. cit., No. 1122.
ViCharlebois v. Sauvi (1889), 32 L.C.J. 37.
16Traiti de Droit Civil Francais, by Marcel Planiol and George Ripert, Vol. VI,
by Paul Esmein, Paris, 1952, No. 349.
“7Ibid., Vol. III, No. 650, p. 665 and authorities cited there; F. Laurent, Principes
de Droit Civil, 4th ed., Bruxelles, 1887, Vol. XXIX, No. 191, p. 226.
No. I1]
CASE AND COMMENT
Since in the case under discussion there obviously was collusion between
the common vendor and the Gagnons, the prior registration of their invalid
title could not have availed against Miron. Nor would Maloney and Phelan
be in a better position, since it is suggested that they too were parties to the
fraud. But even if they were in good faith, their title would be worthless against
Miron’s under the French jurisprudence cited above.
There is no mention in the report of what consideration if any was given
by the Gagnons, Maloney and Phelan. But if it could be shown that none had
been given, or that it’was not serious, 8 or even that it was, conversely, dis-
proportionate to the value of the property’ 9 there would be no need to prove
collusion since the protection of art. 2085 C.C. is predicated on valuable con-
sideration having been given by the second purchaser.
It thus appears that Miron’s unregistered title might have been opposable
to the registration of the deed obtained by the Gagnons. He could probably
have sued for the cancellation of that registration under articles 2149 and
2150 C.C.20 The recourse en passation de titre of art. 1476 C.C. no doubt was
also open to him. But Mr. Justice Bissonnette suggested a much broader
remedy: that there was a right to annul a contract between third parties on
grounds of fraud. The negative protection afforded by art. 1023 C.C. would
thus be reinforced by a positive right to strike at contracts defrauding third
parties. Is there in truth such right of dissolution in Quebec law? We must
leave aside for the moment the Paulian action of articles 1032 to 1040 C.C.
which is usually restricted to cases involving insolvency, for the issue raised
by the Raymond case is whether the right to annul for fraud a res inter alios
acta exists in our law purely and simply, irrespective of the question of
insolvency.
Trudel, the only Quebec author to deal at any length -ith
this matter, re-
cognizes the existence of such remedy and puts it on a quasi-delictual basis :21
Les tiers, ne tirant ni droit ni obligation du contrat souscrit par d’autres, en
subissent pourtant certaines consequences .. .La source et la mesure de leur droit
ne resident pas dans les rapports contractuels; elles sont toutes enti6res dans le d~lit
et le quasi-d~lit que commettent i leur endroit les co-contractants. Le remade sp&
cifique consiste –
non pas A annuler le contrat d’autrui – mais i en supprimer les
effets
l’Egard des tiers qu’on voulait frauder. Le lien contractuel demeure intact
entre les parties; mais l’ex&ution de l’obligation est prohib~e ou cens&e non
r~alis&e dans la mesure requise pour sauvegarder les droits des tiers. Mais pareils
r~sultats ne sauraient venir que d’une faute; sans faute ou d~lit chez les co-
contractants, les tiers restent &rangers aux consequences d’une convention. 22
18Lacroix v. Nault et al. (1909), 18 K.B. 145.
19id.; Barbe v. Barbe (1901), 20 S.C. 119.
20Mignault, op. cit., p. 285; Daigneault v. Derners (1882) 26 L.C.J. 126; Demers,
Claude, in Traiti de Droit Civil du Quibec, by G6rard Trudel, Vol. XIV, Montreal,
1950, p. 437; “L’enregistrement sans droit c’est celui qui est fait pour un droit . ..
qui est fictif ou inexistant.”
210p. cit., Vol. VIII, p. 334; see also p. 192.
22Louis Josserand, Cours de Droit Civil Positif Frantais, 2nd ed., Paris, 1933, No.
410 bls cites steillionate as a typical example of delict, once punishable by coercive em-
prisonment.
94
4 McGILL LAW JOURNAL
[Vol. 4
Trudel assimilates the remedy to an extension of the Paulian action while
pointing out that the Paulian technique may in practice be hardly recogniz-
able.23 Indeed, the wording of articles 1032 and 1033 of the Civil Code is
broad enough to cover contracts made to defraud third parties in general
irrespective of insolvency. The French doctrine, however, rejects
this ex-
tension of the notion of Paulian fraud.2 4 But there are impressive authorities
in support of Trudel’s arguement that the action is not really one in nullity
but only a demand that the fraudulent act between third parties be declared
of no effect with respect to the plaintiff.25 The rule’is clearly stated by Esmein :21
En tant qu’il s’agit de prot~ger le tiers contre la manceuvre ourdie A son d~triment,
la sanction consiste en principe a decider que l’acte lui est inopposable mais qu’il reste
valable entre les parties …
. . . la maneuvre est dclar~e inefficace. Si un acte juridique a &6 employ6 pour
atteindre le r~sultat vis6, cet acte pourra Etre dclarE nul et inopposable 6L ceux contre
qui la manceuvre 6tait dirig6e. Fraus oinnia corrumpit.2
7
The Quebec decisions on this point are few. Tthe reported cases recognize
this right to annul contracts made inter alios without even the qualification
that it is not really a dissolution but rather a declaration of inefficacity of
the contract with respect to the party it was aimed to defraud. In Hyde v.
Webster,28 Gervais J., whose dissenting opinion in the Court of Appeal was
upheld by the Supreme Court, criticized article 1023 C.C. as being vaguer
than art. 1165 C.N.29 which it was supposed to clarify. According to art.
1165 C.N., he wrote, and according to the principles of Roman law from
which it is derived
un contrat nuisible A un tiers pent 6tre attaqu6 par celui-ci, car notre droit dit
avec le droit romain: inter alios acta alt’is nec nocere, nec prodesse potest. Evi-
demment un tiers peut faire mettre de c6t6 un traitE ou une convention que des
parties font dans I’espoir, dans le but, avec l’objet, avec l’effet de lui porter pr6-
judice, de diminuer, d’amoindrir, le patrimoine de ce tiers. C’est justement parce
qu’un tiers qui ne peut pas me nuire par ces contrats me cause prejudice par
ceux-ci, que j’ai droit d’en demander l’annulation sous l’article 1023.
The Supreme Court, with two dissents, maintained plaintiff’s action to have
a lease made by his partner in fraud of his rights declared not binding on
him.
230p. cit., p. 191. See also Ruffer v. Rattray (1911), 39 S.C. 245; Russell v. Guertin
(1886), 10 L.C.J. 133 (the headnote of which is broader than the actual ratio dividendi
of the judgment)
24Laurent, op. cit., Vol. XXIX, No. 191; Paul Esmein
in Traitj de Droit Civil
Franjais by Marcel Planiol and Georges Ripert, Vol. VI, Paris, 1952, No. C. 348, 346.
25Esmein, ibid., an authorites cited there.
26id., No. 348.
27id., No. 346.
28(1914), 23 K.B. 1 at 5; (1915), 50 S.C.1.
29Art. 1165 C.N.; “Les conventions n’ont d’effet qu’entre les parties contractantes;
elles ne nuisent point au tiers, et eles ne lui profitent que dans le cas pr~vu par l’article
1121.” (stipulation pour autrui). Italics mine.
295; (1915), 20 D.L.R. 662.
No. 1]
CASE AND COMMENT
The issue again arose, a few months later, in the case of St. Denis v.
Quevillon and Paquette.”0 In spite of a unilateral promise of sale and a
“pacte de pr~f~rence” given by Quevillon to his tenant St. Denis, Quevillon
sold the immoveable to Payette, the latter being aware of St. Denis’s right.
St. Denis took action in specific performance against Quevillon. Lafontaine J.
maintained the iction in the Superior Court and annulled the sale to Payette
on the ground of collusion. The Court of Appeal31 reversed. The original
judgment was restored by the Supreme Court, with two dissents. Sir Charles
Fitzpatrick C.J.3 2 agreed with Lafontaine J. and rescinded the sale on the
ground of collusion, citing French authorities. Idington J. held 33 that Payette
was in bad faith but reached a conclusion for specific performance by means
which did not require the dissolution of the sale. Duff and Anglin J.J. 34 being
unable to see any collusion. Brodeur J.35 concurred with the first two judges
but saw no need to dissolve. Thus, only one judge of the Supreme Court and
the trial judge were unequivocally prepared to dissolve the sale on the ground
their
of collusion. Nevertheless, one derives
opinions that at least Brodeur and Anglin (diss.) J.J. would have envisaged
the possibility of dissolution if the circumstances had warranted it.
the impression from reading
Finally there is the decision of Trenton Construction & Supply Co. v.
Lavoie3″ which recognizes the right to dissolve.
In the absence of any authority in the report of Mr. Justice Bissonnette’s
opinion in the Raymond case, we thus have the authority of Trudel, the
Supreme Court and French doctrine that there is in Quebec a right to dissolve
contracts made with the intention to defraud a third party. The exact scope
in doubt. Nevertheless, the
of and the conditions for such action remain
action is held to be of a quasi-delictual or delictual nature and not strictly
one in nullity, but rather a demand that the act complained of be declared
as of no effect with regard to the third party. As between the parties to the
agreement, the contract survives.
The third, and main point raised by the opinion of Justice Bissonnette
relates to his-discussion of the effect of the amendment of 2-3 Eliz. II, c. 27,
s. 11. The avowed purpose of the amendment was to eliminate the uncertainty
which existed in Quebec before 1954 as to the possibility of bringing a direct
demand of injunction, i.e. of asking for an injunction independently of an-
other action, not as an incident or an accesory to another, principal, action,
The amendment echoed the wishes of many practitioners. 37
03(1915), 51 S.C.R. 603.
31(1914), 23 KB. 436.
32At p. 605 et seq.
33At p. 610 et seq.
34At pages 615 and 617 respectively.
a5At page 622.
36(1948) R.L. 6.
stSee, for instance, Solomon Weber, “Injunction by direct action and interim injunc-
tion” 38 at page 543 in (1945), 5 R. du B. 400 at 403.
McGILL LAW JOURNAL
[ Vol. 4
Bissonnette J. describes the state of the law before the amendment as
follows :38
Avant l’amendement… a l’art. 957, on pouvait recourir i l’injonction, soit lors de
rassignation sur I’action principale, soit au cours de l’instance. En un mot, l’injonc-
tion 6tait une procedure connexe et ancillaire A une action. L’amendement qui a ajout6
les deux derniers alin~as i cet article a institu6 l’action directe d’injonction.
In other words, it is said that prior to the amendment there was no direct
action of injunction, that an injunction could only be granted at the issue of a
writ of summons in a main action or during the course of that action. The
amendment would thus have had the effect of introducing in Quebec the
direct action of injunction. It must be respectfully suggested that this widely-
held opinion is not entirely accurate. While it cannot be denied that there
existed an abundant jurisprudence holding that an injunction could only be
granted as an accessory to a suit and that there was no independent action
of injunction,39 there are several important decisions, including that of the
Supreme Court in Canada Paper Co. v. Brown,40 asserting the existence of
such direct action in Quebec, a view strongly supported by various writers on
the law of procedure (as we will see).
The theory upheld in the first line of cases was originally advanced in the
seminal case of McArtlhur Bros. v. Coupal.41 It was argued that the 1897
Code of Civil Procedure, which replaced the Code of 1867, had abolished the
direct action of injunction which was said to have existed under articles
1033a-n of that Code. The result was that an injunction under art. 957 C.P.
could only be granted as an incident to an action. So that a petition for an
injunction to restrain a breach of a contract not to enter into the same business
was denied because it was not coupled to a suit.4 2 The court refused to grant
an injunction against the implementation of a decision of the board of directors
of a company because it was not grafted on an action to annul that decision. 43
3 9Cournor Mining C. v. Perrond Gold Mines Ltd. [1952] R.L. 149; Jonstone v. Shaw
[1949] P.R. 269; Tourigny v. Croteau (1944) S.C. 241; Roncarelli v. Forand [1942]
R.L. 169, [1942] K.B. 306; Nesbitt, Thomson & Co. Ltd., v. McColl Frontcnac Oil Co.
Ltd. (1940), 43 P.R. 138; Ville d’A nos v. Pelissier and Blouin (1930), 49 K.B. 434; Cohen
v. Jacobs and Asbestos Corp. of Can. Ltd. (1926), 40 K.B. 345; Berthialnne ct al. v. La
Corp. de St. Elziar et al-(1925-26), 28 P.R. 46; Dubord v. L’Orientale Lte (1925), 63
S.C. 538; Gingras v. Gauthier (1924), 26 P.R. 25; Lombard et al. v. Varennes et Thidtre
National (1922), 32 K.B. 164, especially Dorion J.; Fancher v. La Cie de l’H6tel St.
Louis (1921), 23 P.R. 100; Davis v. Jacobs Asbestos Mining Co. of Thetford Ltd. (1920),
22 P.R. ‘225; Wilson et al. v. The School Commissioners of the Municipality of Hudson
(1920), 26 R.L.n.s. 283; Allaire v. Cardinal (1919-20), 21 P.R. 17; Brisebois v. Les Con-
inissaires d’Ecoles de St. Grigoire le Thaninaturge et Archambault (1917), 23 R.J. 546;
Hum Hop Sing Tong v. Wing (1916), 22 R.L.n.s. 253; McArthur Bros. v. Coupal (1899),
16 S.C. 521.
40(1922), 63 S.C.R. 243; (1921), 31 K.B. 507.
41(1899), 16 S.C. 521.
42Hvin Hop Sing Tong v. Wing (1918), 22 R.L.n.s. 253.
43Davis v. Jacobs Asbestos Mining Co. of Thetford Ltd. (1920), 22 P.R. 225.
No. 1 ]
CASE AND COMMENT
On the other hand, while the reported cases favoring the opposite view may
not be quite as numerous, 44 it may plausibly be argued that they represent a
more correct view of the law. It would be difficult to disregard the categorical
decision of the Supreme Court in Canada Paper Co. v. Brown.45 Further-
more, as was pointed out by Cross J. of the Court of Appeal in Rh~aume v.
Stuart46 the claim of the Coupal school of cases that the 1897 Code restricted
the scope of the injunction is in direct contradiction with the statement of the
Codifiers themselves that their intention was to widen, rather than restrict, the
field of application of the remedy:
L’effet principal du changement sera d’6tendre le champ d’action de ce recours
utile.47
Mr. Justice Carroll in Audet et al v. Jolicoeur48 again drew attention to this
contradiction:
Est-il vrai de dire que le nouveau code de procedure a aboli le bref d’injonction
comme demande principale? Pourtant telle n’6tait pas I’intention des codificateurs
qui d6clarent 6tendre le champ d’action de ce recours utile. Si l’opinion 6mise dans
McArthur v. Coupal pr~valait, le champ d’action aurait r~trici et non 61argi …
la d6cision rendue dans McArthur v. Coupal 6tait probablement correcte pour la
cause qu’il s’agissait de d6cider: une action en dommages. Mais les principes ginj-
raux qui y sont posis sont contraires a la lettre et a tesprit de nos lois.49
It was held in Berliner Gramophone Co. Ltd. et al. v. Musical Merchandise
Co. Ld. that art. 957 C.P. did not deprive a party of the right to demand
by the conclusion of a direct action that an order be issued to do or to suspend
certain acts. In Canada Paper Co. v. Brown5′ the Supreme Court held ex-
plicitely that a perpetual injunction may be maintained even if no interlocutory
injunction has been issued and this view was followed in later decisions.5 2
The Supreme Court refused to award damages for an industrial nuisance but
held that it was not restricted to that relief and could restrain by perpetual
injunction the continuation or repetition of the nuisance.
44Constant v. Vachon [1947] S.C. 206; Transportation and Power Corp. Ltd. v.
Beanharnois Light, Heat & Power (1933), 55 K.B. 344; Garneau v. Citadel Brick Co.
(1931), 51 K.B. 9; Berliner Gramophone Co. Ltd. v. Musical Merchandise Co. Ltd.
(1925), 31 R.L.n.s. 453; Canada Paper Co. v. Brown (1922), 63 S.C.R. 243; (1921), 31
K.B. 507; Audet v. Iolicoeur (1912), 22 K.B. 35; (1912), 5 D.L.R. 68; Rheaume v.
Stuart (1911), 20 K.B. 411; Wilder v. Citj de Quebec (1904), 25 S.C. 128.
45(1922), 63 S.C.R. 243; (1921), 31 K.B. 507.
46(1911), 20 K.B. 411.
4 7 Rapport des Contnissaires, Ch. XXXVIII, as cited in Code de Procidure Civile,
annotated by Henri Grain-Lajoie, Montreal, 1920, p. 1359.
48(1912), 22 K.B. 35 at 40.
49Italics mine.
50(1925), 31 R.L.n.s. 453.
51Cf. supra.
52C.J. Constant v. Vachon [1947], S.C. 205; Garneau v. Citadel Brick Co. (1931),
51 K.B. 9.
McGILL LAW JOURNAL
[Vol. 4
In Robinson v. Robinson5 3 Lamothe C.J. went so far as to argue that in-
junction had always been part of our law and that 41 Vic. c. 14 which in-
troduced articles 1033a-n into the 1867 Code, merely facilitated its applic-
ation:
L’injonction a toujours exist6 dans notre droit; on a toujours pu la demander
par les conclusions d’une action ordinaire. Ce droit n’a jamais tM rivoqui.5 4 L’acte
41 Vic. c. 14 a eu pour but de rendre plus usuelle et plus facile dans notre proc6-
dure l’injonction provisoire pendant l’instance.
Cross J. in Rhgaunze v. Stuart55 said:
The practical change introduced by the new code consists in the fact that the
injunction is not now embodied in the wording of a writ, but “consists of an order
enjoining the opposite party . . . to refrain from a specified act, or to suspend
all acts and operations, respecting the matters in controversy, under pain of all
legal penalties (article 964), which order is served upon the opposite party in the
manner provided for writs of summons, or prescribed by the judge” (art, 965).
It is a mere question of language or words whether the injunction is an in-
dependent action or a mere accessory of what may be called a common law action.
It can hardly be seriously contended that a demand for an injunction to restrain
breaches of a written agreement, or infringement of trademark rights, or breaches
of a Partnership-deed would not constitute an action standing by itself.
It seems proper to conclude (from 968 and 969) that there can be a final judg-
ment which “pronounces the injunction required” and which, unlike an ordinary
final judgment remains in force notwithstading appeal or review.-io
This was also the view of the anonymous reviewer of the Revue dit Droit in
1932.57 A few years later Lao Pelland, in the same journal, 58 argued that
there had always been a direct action of injunction in Quebec and even sug-
gested that its application be extended rather than restricted. Solomon Weber,
editor of the Code of Civil Procedure, reviewing the jurisprudence echoed
that view :59
The provisions governing injunction could be clarified (by amendment or in the
expected revision of the Code of Civil Procedure) asserting the right of a plaintiff
to ask for an injunction by the conclusion of his declaration only without prior
necessity of a petition for an interlocutory injunction.
The necessary conclusion from this examination of the jurisprudence and
of the authorities is that the direct action of injunction continued to exist
after 1897, even though a large number of decisions erroneously held the
contrary view. The amendment to art. 957 C.P. no doubt was intended to
eliminate the uncertainty on the matter. But art. 957 C.P., paragraph 3, can-
not be said to have created a new right, to have the effect of “instituer l’action
directe d’injonction.” We will see that far from clarifying the situation, the
amendment has added to the confusion and has furthermore restricted, rather
than widened, the right to a direct injunction.
53(1922), 33 K.B. 181 at 184.
54Italics mine.
55(1911), 20 KB. 411 at 414.
5OCarrol J. was of the same opinion in Wilder v. Citi de Quibec (1904), 25 S.C. 128.
57(1931-32), 10 R. du D. 108-10.
58(1934-35), 13 R. du D. 303.
59op. cit.
No. 1]
CASE AND COMMENT
What then is the law today, in the light of the amendment? Mr. Justice
Bissonnette, in the Raymond case, says :60
L’amendement . .. a impos& comme condition formelle qu’une telle procidure (par
action directe d’injonction) ne se justifift qu’, d~faut de tout autre droit d’action.
This is a reiteration of his view in the unreported case of Guaranteed Pure
Milk Co. Ltd. v. Patry,61 as cited and followed by Sylvestre J. in the
Champlain Oil Products case.u It is a prerequisite for this injunction that
there be no other recourse available. If there is such other remedy, the in-
junction can only be demanded as an accessory to the suit seeking that remedy.
it cannot be said that amendment
However, even within this qualification,
provides for an unlimited right to a direct suit of injunction. In the very
words of Bissonnette J. :’3
… le droit a l’injonction, mEme par une instance directe n’est pas absolu; tout au
contraire, il est subordonn6 aux cas envisagEs dans le premier paragraphe et ses
dire que l’instance d’injonction n’existe que
deux alin~as a et b; ce qui revient
sI son objet a pour but d’emp8cher la commission ou la continuation d’une action
ou encore si celle-ci est de nature a causer un tort srieux ou irreparable. Dans le
‘exercice d’une concurrence
premier cas, une application pourrait se trouver dans
d~loyale, tandis que la demolition d’un immeuble peut 6tre un exemple du second.
To sum up, under the third paragraph of art. 957 C.P., the remedy of
direct action of injunction only lies when:
there is no other recourse then available and
1.
2. provided
the injunction aims at restraining the commission or con-
tinuance of any act of a nature to produce great or irreparable injury.
It remains to be seen what interpretation the courts will place on the con-
dition that the plaintiff have “no other recourse to exercise than an injunc-
tion.” Does it mean “no other recourse” or no other satisfactory recourse?
If the first interpretation is adopted, as the Court of Queen’s Bench seems
inclined to do, one may well wonder whether Canada Paper Co. v. Brown
has not in effect been overruled by legislation. In that case there was another
remedy (in damages) but the court granted the injunction on the grounds,
not that there was no other recourse, but rather on the ground that that re-
course would not be satisfactory. Of course, it might be retorted plausibly
that “no other recourse” means the same as “no other satisfactory recourse,”
or vice versa. But cases might conceivably arise in which the distinction might
have to be made. The decision might depend on whether the courts will have
overcome their present hostility to a principal demand of injunction.
However, tlhere is a much more important area of doubt created by the
amendment. We have seen that it has been interpreted in four recent decisions
as instituting a direct action of injunction. The text of the amendment itself
is as follows:
60at p. 574.
61See footnote 2.
63at p. 574.
62pd.
McGILL LAW JOURNAL
[Vol. 4
junction in any of the following cases:
957. Any judge of the Superior Court may grant an interlocutory order of in-
3. Without the issue of a writ of summons, in the case of sub-paragraphs a
and b of paragraph 1, if at the time the plaintiff has no other recourse to exercise
than an injunction. The application for injunction shall then itself constitute a suit.
The issue of an interlocutory order of injunction in such circumstances shall
not deprive the petitioner of the right to obtain later the issue of a writ of sum-
mons to exercise any other recourse on the same subject, but based on a ground
of action subsequent to his petition for an interlocutory injunction.64
In other words, a principal demand has been created for an interlocutory
injunction!
But what
is an interlocutory
injunction? Webster’s New International
Dictionary65 defines
‘interlocutory’ as:
3. Law. Intermediate; not final or definitive . .
.
Black’s Law Dictionary6″ defines it as:.
Provisional; temporary; not final.
In Mozley and Whiteley’s Law Dictionary it is defined as:
INTERLOCUTORY.
Intermediate, with especial reference to suit or action.
The same dictionary defines
‘interlocutory injunction’ as follows:
INTERLOCUTORY INJUNCTION
is an injunction granted for the purpose
of keeping matters in statu quo until a decision is given on the merits of the case.
Halsbury 6 7 says:
The object of an interlocutory or interim injunction
statu quo, until the case can be decided.
is to preserve matters in
Bouvier’s Law Dictionary8 uses the following terms:
Preliminary or interlocutory injunction are used to restrain the party enjoined
from doing or continuing to do the wrong complained of, either temporarily or
during the continuance of the suit or proceeding in equity in which such injunction
is granted, and before the rights of the parties have been definitely settled by the
decision and decree of the court in such suit or proceeding.
Recent Quebec decisions define it variously as “essentiellement une inesure
provisionnelle qui ne doit avoir aucune portge pratique sur le m6rite de ]a
cause,” 69 or as an order whose aim is “to preserve the statu quo until the right
claimed has been finally adjudicated upon.”70 Even more explicit
is Mr.
64ltalics mine throughout.
65N.Y., 1949; cf. also Harrap’s Standard French and English Dictionary, Part One,
London, 1945, p. 463.
664th ed., St. Paul, Minn., 1951, p. 952.
67Halsbury’s Laws of England, 2nd ed., 1935, Vol. 18, p. 4.
683rd. ed., Cleveland, 1946, p. 549.
69Lacroix 3. in Mailloux v. Corp. Municipale de St. Edmond [1952] R.L. 495.
70Smith J. in Allen v. Sun Life Assurance of Canada [1953] S.C. 454.
No. 1]
CASE AND COMMENT
Justice Marquis in Noranda Mines Ltd. v. The United Steelworkers of
America :71
les articles 957, 960, 961, 966 et 969 emploient le mot “interlocutoire” pour cette
inesure porvisionnelle, soit qu’elle soit dicerne lors de 1’6mission du bref ou au
cours de l’instance, soit qu’elle soit temporaire ou qu’elle reste en vigueur jusqu’au
moment oii elle est d6cid~e par jugement final.
Thus, in Quebec as well as in English and American law, an interlocutory
order of injunction is a provisional measure granted incidentally to another
action and which is finally decided at the time of the adjudication of the
main action. It obviously cannot be an injunction granted as a principal
demand. Since there is no other action, there can be no ‘final adjudication’
at the time judgment is rendered on that action. If the amendment has in-
stituted a principal action of injunction, as the Court of Queen’s Bench holds,
it cannot be ‘interlocutory’, it cannot be ‘provisional’. It necessarily must be
a final or perpetual injunction. The later recourse of which subparagraph 2
of paragraph 3 speaks is another action entirely and may never be sought.
All the cases which had held that there was a direct action of injunction in
Quebec stated that in such case a final or perpetual injunction would be
granted without need for a interlocutory injunction. The very purpose of the
amendment was to enact the existence of such independent injunction. Indeed,
the fact that it was intended to create an action for a final injunction is evident
from the amendment to art. 968 which was made at the same time as that
to art. 957. It added the last four words to the first paragraph, which now
reads:
The final judgment adjudicating upon the conclusion of the petition, as well as
upon the merits of the action, if there is one.
This confusion between interlocutory and final judgment of injunction is not
new. In 1948, the Court of King’s Bench, through the mouth of Chief
Justice ltourneau speaking for all the judges of the Court except one
absentee, made the following clarifying statement :7
un jugement qui accorde ou refuse l’mission d’une injonction interlocutoire
aprts l’institution d’une action ou instance principale, est un interlocutoire . .
.
Si ce n’6tait les difficult~s que font encore naitre certains cas exceptionnels,
l’action en bornage ou
j’en excepte l’hon.
comme par exemple
l’action en partage, l’unanimit6 des juges de la Cour d’appel –
juge Stuart McDougall, pr~sentement au Tribunal international si~geant ATokyo-,
serait aussi d~s maintenant acquise aux d6finitions et rtgles que voici:
l’action en reddition de comptes,
1. II ne peut y avoir en toute instance principale qu’un jugement final et des
interlocutoires.
2. Le jugement final est proprement celui qui termine un procs et met fin A
l’instance sur le fond; le jugement interlocutoire est celui qui est prononc6 durant
le proc~s, savoir entre l’institution de l’action ou de la demande initiale, principale
et le jugement qui met fin, et comprend toute dcision quant A un incident…
J’esp~re qu’on y viendra A cette r~gle g~n&ale et le plus t6t possible.
71[1954], P.R. 191 at 192.
72L’Association Patronale des Manufacturiers de Chaussures du Quibec v. Dependable
Slipper and Shoe Mfg. Co. Ltd. and l’Union Internationale des Ouvriers de la Fourrure
et du Cuir des Etats-Unis et du Canada et Boivin et Feiner et al. [1948] K.B. 355 at 357.
McGILL LAW JOURNAL
[Vol. 4
The purpose of the Appeal Court was to remove the prevailing ambiguity
as to the distinction between both types of judgment and the right of appeal
therefrom. It is clear from this important declaration that the judgment grant-
ing the injunction under the third paragraph of art. 957 C.P. is a ‘final’ judg-
ment and not an interlocutory one.
To call it interlocutory and to insert it in art. 957 C.P. was thus a flagrant
error. Furthermore, since it is a final remedy, it should not have been included
in the Fourth Part of the Code dealing with “Provisional Remedies.”
It
might have been placed perhaps in the Fifth Part on “Special Proceedings,”
where in fact it was before 1897, at a time when, according to the Coupal
school, there was a direct action. At present, a plaintiff succeeding in ob-
taining a perpetual injunction under the third paragraph of art. 957 C.P.
would receive an order which is only ‘interlocutory’ or ‘provisional.’ Provis-
ional until when? Interlocutory with respect to what final jugment?
We are not confronted here with a mere problem of terminology, but with
a situation which may have far-reaching practical consequences. For, if one
argues that the amendment has created a principal demand for an “inter-
locutory” order of injunction, one must also assume that all the articles
dealing with interlocutory injunctions and judgments apply. Even a cursory
examination of these articles discloses the practical implications of the dis-
crepancy. For instance, what are we to make of art. 959 C.P. which permits
additional injunctions when necessary? Does it apply to a direct injunction?
Or could a plaintiff petitioning for a direct order invoke art. 961 C.P. which
stipulates that
In case of urgent necessity the judge may grant an interlocutory injunction
without notice?
In other words, could a plaintiff secure what might really be a perpetual in-
junction without giving notice to the respondent? The protection given by
art. 966 C.P.73 to the other party in such cases is meaningless since there is no
other “judgment.” Or, how can one reconcile art. 957 C.P., paragraph 3,
with art. 967 C.P.? For, if, as we have seen, the amendment allows the issue
of a final order of injunction without prior issue of an interlocutory injunc-
tion, that finality would be fragile indeed if it could, in the terms of art.
967 C.P.,
from time to time be suspended for such period and upon such conditions, as to
security, or otherwise, as the judge deems reasonable, and may afterwards, in like
manner, be renewed from time to time.
If this provision applies to the injunction granted under the amendment, the
remedy it grants would be less effective than the final order of injunction prior
73Art. 966 C.P.: “When an interlocutory injunction is granted without notice the
person against whom it is directed may, at any time before judgment, apply to have it
vacated or modified.”
No. 1]
CASE AND COMMENT
to 1954! Or how is one to interpret art. 969 C.P.74 now? While it might be
argued that the first paragraph of that article creates no problem, save for the
words “confirming an interlocutory injunction,” the second paragraph becomes
entirely meaningless if one tries to apply it to the injunction by direct action.
A problem also arises in connection with the right of appeal from a judg-
ment on the injunction. Do arts. 46 and 1211 C.P. (appeals from interlocutory
judgments) apply? Or, since it is a final judgment, do the provisions of art.
43 C.P. come into play? One can hardly overemphasize the importance of
the answer to these questions.
It appears thus that the amendment to article 957 C.P. has created not
only an inconsistency within the article itself, but also between art. 957 C.P.
and articles 959, 966, 967 and 969. It is suggested that this is essentially the
result of the error in terminology and of the illogical placing of the provisions
enacting a direct action of injunction in a chapter dealing essentially with
provisional remedies. A special chapter should be created in Part V, direct
injunctions being more properly “Special Proceedings”
than “Provisional
Remedies.” The new chapter might contain a revised and more explicit
version of the amendment and other provisions peculiar to a direct action in
injunction, with reference perhaps to the relevant articles in Chapter XXXVIII.
CLAuDE-ARMAND SHEPPARD*
74Cf. page 32.
73Art. 969 C.P.: “Any final judgment confirming an interlocutory injunction, remains
in force notwithstanding appeal.
A interlocutory injunction remains in force, notwithstanding a final judgment dissolv-
ig it, whenever the petitioner, immediately upon the rendering of the judgment, declares
his intention to take the case to appeal, and, within two days thereafter, serves his in-
scription in appeal.”
*Of the Board of Editors.
BOOK REVIEWS
SPECIAL LECTURES OF THE LAW SOCIETY OF UPPER
CANADA, EVIDENCE
TORONTO: RICHARD DE Boo LIMITED. 1955. Pp. xiii, 342, ($12.50)
Some of the lectures in this series of seventeen lectures on Evidence by
prominent members of the Ontario bar would not be considered great con-
tributions to the scholarship of the law. But in this work-a-day world where
not every lawyer can be a law professor there is a real need for instruction
in the work-a-day practices that are largely taken for granted by experienced
practitioners. Until very recently the learning of these practices was left to
the haphazard chance of articled clerkship and the young lawyer was frequently
without adequate training. These lectures, of the variety which Mr. Edson
Haines Q.C., calls, in his talk on Examination for Discovery (pp. 23-45),
lectures, will go a long way to supplement the proper content
“how-to-do-it”
of a university law school’s course in evidence in those provinces, other than
Quebec and Ontario, where reliance is still placed on the unimproved (and
barren) land of articled clerkship.
lecture as Mr. Haines’ own,
It would be wrong, however, to suggest that all the lectures are on this
lesser level of “practicality” or that the “practical” lectures contain not even
the seeds of wholesome academic thought. In fact, the element of academic
is
thought present in such a “how-to-do-it”
sufficient to demonstrate the futility of separating the academic from the practical.
Mr. Haines
tells us how he explains the adversary system to his clients
so as to help them overcome the fear of the unknown and thus to make them
less nervous witnesses. It is, unfortunately, a rather oversimplified statement
compelled by the limits of time and space, but he does suggest, as if it were
significant, that “a lawsuit is [not] a scientific enquiry into the truth.” Of
course it is not, because the scientific method has very little to offer in the
task of enquiring into what happened in a dispute over the facts. When our
sense of values dictates that some protection be given to the disputing in-
dividuals, it is doubtful whether science could find any fairer and more effective
method of enquiring into the truth than the common law trial. Admittedly,
where the adversary character of the procedure is pressed to the extreme,
some of the exclusionary rules of evidence unquestionably result in distortions
of the truth.
For example, Dean Wright, in his estimable lecture on Res Ipsa Loquitur,
dismisses as “unwarranted”, on the “existing principles of the adversary
system”, Judge Frankfurter’s view that a trial judge should have called a
witness on his own motion in order to have all available evidence. Frankfurter
No. 1]
BOOK REVIEWS
J. refused to believe that a trial was a game of blindman’s buff. He was, in my
opinion, quite right, and somehow I feel that Dean Wright would agree that
the “existing principles” might better have been described as court of appeal
authority awaiting clarification in the Supreme Court of Canada.,
It is abundantly apparent from the lecture titles that the “how-to-do-it”
topics as Preliminary Hearings
element varies greatly, from such “practical”
(by G. Arthur Martin Q.C., pp. 1-21), Identification Procedures and Police
“y
Line-Ups (by Charles L. Dubin Q.C. pp. 329-342), Cross Examinaio1.3
Joseph Sedgwick Q.C., pp. 199-214) to such “academic” matters as the H,:irsay
Rule (by J. J. Robinette, Q.C. pp. 279-306) ai:d, by the same contributor,
Circumstantial Evidence (pp. 307-312).
is) present
(as he now
In addition to the “practical lectures”, Dean Wright and Professor J. Des-
two most interesting “academic”
mond Morton
lectures, Dean Wright (pp. 103-36) on Res Ipsa Loquitur (a Latin phrase now
running a close second to Res Gestae as the most meaningless and misleading
Latin tag in the common law) and Professor Morton on Presumptions (pp.
137-153). In the short space of a review it is impossible to comment on all
the contributions, but it would be hard to find a more qualified display of con-
temporary forensic talent in Canada, and the young lawyer will find much of
lectures as well as stimulation of a
immediate value from the “how-to-do-it”
different character provided by Dean Wright and Professor Morton.
This volume of lectures is the second of two major pieces of writing in the
law of Evidence in Canada. The other, of course, is Dr. MacRae’s contribu-
tion to the Canadian Encyclopedic Digest, recently revised by Messrs Auld
and Morawetz. It is of some importance, I think, that both Dr. MacRae and
his successors, and the committee in charge of the Osgoode lectures, have
judicial notice. The
excluded from the subject of evidence
C.E.D. relegates the topic to three pages (671-3 in Vol. 10) under the title
Trials without even a cross reference from the title Evidence. Apparently the
editors revising the second edition plan to follow this classification. Canadian
the topic of
‘Contrast Rule 105 (d) of the Model Code of Evidence which permits the trial
judge the privilege of calling a witness of his own motion. And contrast Professor
Morgan, himself a staunch supporter of the adversary system, in Some Problems of
Proof Under the Anglo-American System of Litigation (1956) at p. 128: “We must
concede that the trial is a proceeding not for the discovery of truth as such, but for
the establishment of a basis of fact for the adjustment of a dispute between litigants.
Still it must never be forgotten that its prime objective is to have that basis as close
an approximation to the truth as is practicable. The emphasis upon the protection of
the adversary and the fact that the result is binding only upon the parties and their
privies have tended to make this objective seem of secondary importance …
It cannot be
too emphatically asserted that such a beclouding of the objective is an abandonment
of the fundamental principle of the adversary system, namely, that each adversary
because of his interest will be- keen to discover and present materials showing the
strength of his position and the weakness of his opponent’s, so that the truth will
emerge to the perception of the impartial tribunal.”
McGILL LAW JOURNAL
[Vol. 4
lawyers who depend on standard works like the C.E.D., or lectures by such
qualified persons as the Osgoode volume here reviewed might be forgiven if
they never learned that judicial notice is not only a main branch of the law of
evidence, but also a most difficult branch. It is, of course, treated, all too
briefly, in standard English works, and Wigmore gives it due place in his
monumental treatise. But since Wigmore’s third edition in 1940 Professor
Kenneth Culp Davis has carried the analysis much farther and the subject
can be said to have made important strides forward in terms of basic legal
analysis in the past fifteen years.2 This review is not the place to expound
Professor Davis’ theory at length, but it is clear that judicial notice is an
ambiguous concept, and its clarification could lead to better briefs (factums)
in our courts and a better understanding of a court’s use of extra record
material.
In his introduction to these lectures on Evidence, Mr. Cyril Carson, Q.C.,
says, of an unsuccessful attempt to introduce the London Resolutions
in
evidence before the Privy Council in a constitutional case, “their Lordships
.. . thus ran no risk of something that was inadmissible in law having some
unconscious effect upon their decision upon the merits of the case.”
(p. xiii).
One can easily imagine a judge having already read the London Resolutions
long before he reached the bench, and having already formed some idea of
their relation to the British North American Act. Is it better to reject the
“evidence” of the London Resolutions and have the judge unconsciously
affected by previous reading, or should we accept the matter as one of which
judicial notice might be taken but insist that intelligent discussion be heard
from the opposing parties? If the latter view is accepted, then the whole
question of how and when matters might be judicially noticed will have to be
reexamined. This task still faces our academic scholars in the law of evidence.
J. B. MILNER.
2 See particularly Davis, Administrative Law
(1951) pp. 487-497, on “Legislative
and Adjudicative Facts.”
No. 1]
BOOK REVIEWS
AN INTRODUCTION TO EVIDENCE
By G. D. Nokes, LL.D.
SECOND EDITION. LONDON: SWEET & MAXWELL LIMITED, TORONTO: THE
CARSWELL COMPANY LTD. 1956. PP. xxxvl, 480 ($7.25)
This is the second edition of a work first published in 1952. Both editions
have been the subject of deservedly complimentary reviews in the Canadian
Bar Review.’
The new edition has been necessitated by a number of new cases (number-
ing between 250 and 275 if one can judge from the Table of Cases) which
have been decided in the British Isles since the first edition was published.
While the general plan of the book has been retained almost unaltered,
the text has been expanded by more than fifty pages.
The various subjects are treated in an order different from the order
followed by Phipson. The author proceeds from the origin of the various
methods of proof to their application in court. The preliminary part of the
book is devoted to the nature and sources of evidence and special means of
establishing facts. Admissibility of Facts and Admissibility of lHearsay com-
prise parts I1 and III. Then follows Means of Proof and the fifth part deals
with the Burden of Proof and -with Cogency.
The conclusions are supported by reference to jurisprudence,
to authors
both English and American, and to articles in legal periodicals including
several articles published in the Canadian Bar Review. I was unable to find
any reference to Canadian cases (unless decided by the Privy Council) and
all the jurisprudence appears to be English, Scottish or Irish.
The book is a happy combination of the theoretical and the practical. It js
not designed for use by the practicing advocate in Court, as is Phipson or
Cockle, nor is it of much utility to a Quebec lawyer or student. It does
however contain a clear and concise exposition of the general principles of the
law of evidence in England.
GEORGE S. CHALLIES.
1(1952) 30 Can. Bar Rev. 759 (Andr& Nadeau) and (1956) 34 Can. Bar Rev. 871
(J. B. Morton).
